Persona-character Copyrights and Merger's Role in the Evolution of Entertainment Expressions

• Publication year: 2018

Persona-Character Copyrights and Merger's Role in the Evolution of Entertainment Expressions

Sydney Altman

PERSONA-CHARACTER COPYRIGHTS AND MERGER'S ROLE IN THE EVOLUTION OF ENTERTAINMENT EXPRESSIONS

Abstract

Millions of people tuned in to Comedy Central's The Colbert Report to learn about the state of our nation from the renowned satirical character, Stephen Colbert. Millions more tuned in to watch the same Stephen Colbert make his return on CBS's The Late Show with Stephen Colbert. However, after his first television revival, Viacom quickly shut down any possible future return, claiming that it, not Stephen Colbert the actor, held the copyright to the character Stephen Colbert. While this is not the first time that an actor was ineligible to maintain control over a persona-character he crafted, this incident exposed that copyright law does not have a means of protecting characters who become a true extension of the living, breathing actor.

The law does not allow the content of an idea to be protected, nor does it allow protection when an otherwise protected expression has merged with an idea. The policy behind this prohibition is to allow creativity to flourish so society benefits. When the line is blurred between an actor and a character so much that the character is inextricably linked to the actor, the law should label the idea and the expression merged. By relying on the merger doctrine as a personal affirmative defense in a greater capacity than courts have recognized previously, the actor can maintain control over a character that has become his counterpart.

This Comment defines what qualifies as a character and what makes the character eligible or ineligible for copyright protection. This Comment proposes placing characters on a spectrum, from those that are granted full copyright protection to those that are denied legal security. When the line is not clear regarding whether a character is an original expression or is a persona of the actor, this Comment suggests utilizing the merger doctrine as a personal affirmative defense to eliminate a studio's inflexible copyright control and to release the character into the actor's shared control.

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Introduction..............................................................................................737

I. Background....................................................................................739

A. What Is a Character? ................................................................ 740
B. What Is a Copyrightable Character? ........................................ 743
C. Limitations on Copyright Protection for a Character............... 747
D. The Right of Publicity................................................................ 751

II. The Tension Between Copyright and Right of Publicity in Character Protection and Ways to Fill the Gap....................753

A. The Character Spectrum and the Rights Associated with Persona Protection .................................................................... 754
B. Utilizing Merger to Fill the Spectrum's Gray Area................... 757

III. Possible Objections to Using the Merger Doctrine................759

A. Joint Authorship to Allow for Equal Ownership ....................... 759
B. Work Made for Hire That Eliminates Any Potential Claim to Ownership ................................................................................. 762

IV. Solutions to the Character Copyright Gap and Merger's Role in the Character Life Span.................................................764

A. Merger as an Affirmative Defense Creates Royalty-Free Licenses to Combat Change of Control Issues .......................... 765
B. Shifting Control Between the Studio and the Actor During a Character's Life Span ................................................................ 767

Conclusion..................................................................................................769

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Introduction

"So it is with a heavy heart that I announce that thanks to corporate lawyers, the character of Stephen Colbert host of 'The Colbert Report,' will never be seen again."¹ These words by Stephen Colbert officially put his character in a grave—that is, the Stephen Colbert persona-character we all know and love who provided witty satire concerning political developments and current events four days a week for nine years and 1,446 episodes.² The talk show host went on to proclaim, "I cannot reasonably argue that I own my own face or name. And as much as I would like to have that guy on again, I can't."³

While Stephen Colbert is just one example of an actor who decided to take the high road and kill a character rather than face legal consequences, the ordeal brought to light an area of copyright law that has a significant gap. This gap mainly involves what happens when a character and an actor become so inextricably linked that copyright may not provide sufficient protection. This area of law is largely unexplored because most parties end up settling when a legal issue arises. However, legal scholars have developed many theories regarding how to manage character copyright control, which serves as the basis for this Comment.

As our entertainment industry becomes much more personal with the advent of reality TV, social media, satirical shows, and the like, it is harder for consumers to differentiate between the real figures and the characters that they portray. Characters are no longer purely fictional beings. The line between reality and scripted television and film has become obliterated with shows like The Hills⁴ and The Bachelor and The Bachelorette⁵ that construct personas for

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their casts. As the idea and the expression of the idea (i.e., the tangible character) become nearly synonymous, as with Stephen Colbert and "Stephen Colbert," should copyright's strict standards become more flexible to recognize the persona-character in the entertainment industry?

At the highest level, protecting these persona-characters⁶ allows for more creative and artistic expressions without fear of losing the rights to valuable figures. Although many may not acknowledge it, entertainment is one of the most important facets of modern life.⁷ Stripping actors of the right to use the persona that they crafted increases the potential to stifle innovation and creates a rigid environment in which emerging artists struggle to succeed. Because copyright law is meant to encourage artists and promote creative expression,⁸ society will be at a detriment without some extended protections. It is important to balance the competing interests between a copyright holder's investment with an actor's rights to a character, particularly when it is nearly impossible to sever the actor-character association. The reasons for solving this problem go beyond protecting that singular actor's investment: this scenario also extends toward protecting established and emerging artists who strive to make a name for themselves in the competitive entertainment industry.

This Comment explores the following three questions that arise from this tenacious problem. Where should we draw the line that severs the connection between a character and an individual? Is this a spectrum of rights that can shift depending on a character's developmental stage? What are the implications of utilizing merger as an affirmative defense and implementing a limited-scope license to an actor? This Comment proposes that actors like Stephen Colbert can use the merger doctrine in a limited scope, as a personal

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affirmative defense, to continue portraying persona-characters that are deeply associated with their individual identities.

This Comment proceeds in four Parts. Part I provides background material regarding the extent of copyright's protection of characters in motion pictures or television series. It begins by defining what a character is legally. Then, it discusses what it means for a character to be copyrightable and whether a character can be separated from the work as a whole, creating its own protectable entity. Next, this Part discusses what happens when copyright protection fails, specifically providing an in-depth examination of the merger doctrine. Lastly, it addresses the potential for the right of publicity to displace copyright when characters and actors become indistinguishable.

Part II identifies the tension between copyright and the right of publicity regarding character ownership. First, this Part places characters on a spectrum, from fully copyrightable to fully unprotected. The law is most unpredictable when characters are placed in the middle of the spectrum, largely relating to persona-characters. Second, it suggests a way to fill the gap by relying on the underutilized merger doctrine as a personal affirmative defense.

Part III raises and negates possible objections to using the proposed merger affirmative defense theory, highlighting two prominent alternatives for handling control disputes. The first objection includes joint authorship credit and the second objection includes claiming work made for hire.

Part IV suggests that the limited-scope merger essentially creates a royalty-free license for an actor that can be incorporated contractually at the beginning of character development. This Part concludes by highlighting how temporal conditions and public perceptions can cause an actor and a character to merge and unmerge throughout the life span. By recognizing the fluidity of a character, protections can be extended appropriately while preserving the quality of the expression.

I. Background

Movies and television shows are filled with classic characters—from Superman to Dorothy to Harry Potter—that resonate deeply with the public for various nostalgic reasons. Characters are not only important to the viewing public, but are also invaluable assets to the studios and actors who bring them

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to life.⁹ The legal protection available...